P. Wilinski

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Title of Research: Testing the arbitral Tribunal’s Mandate in International Commercial Arbitration. When Does the Tribunal Transgress its Authority?

Promotor: Prof. F.J.M. De Ly

The arbitral tribunal’s mandate to resolve a dispute between parties comes with the obligation not to exceed the authority. Consequently, if the power is abused, parties will have a legitimate right of recourse to the court against the arbitral award.

At the enforcement stage, Article V(1)(c) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards will be the starting point for a recourse against a tribunal's actions in excess of its mandate. Pursuant to said proviso, the tribunal shall not decide on '…

Title of Research: Testing the arbitral Tribunal’s Mandate in International Commercial Arbitration. When Does the Tribunal Transgress its Authority?

Promotor: Prof. F.J.M. De Ly

The arbitral tribunal’s mandate to resolve a dispute between parties comes with the obligation not to exceed the authority. Consequently, if the power is abused, parties will have a legitimate right of recourse to the court against the arbitral award.

At the enforcement stage, Article V(1)(c) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards will be the starting point for a recourse against a tribunal's actions in excess of its mandate. Pursuant to said proviso, the tribunal shall not decide on 'differences not contemplated by or not falling within the terms of the submission to arbitration', and shall not decide on 'matters beyond the scope of the submission to arbitration'. Unfortunately, limitations as offered in Article V(1)(c) are elusive because of the unclear language.

Additionally, when the challenge against the award is brought in the setting-aside procedures, the national concepts of the arbitral mandate are relevant. They differ, however, and - as such - do not provide necessary clarification to understand the notion of the mandate in international commercial arbitration. For example, Germany follows the wording of the New York Convention, whereas the interpretation of the abuse of mandate in the US is expanded to the manifest disregard of law. French and English models also need to be properly addressed.

In turn, I intend to answer the question as to when does the tribunal exceed its mandate in the light of Article V(1)(c) of the New York Convention and of corresponding national legal provisions.

The analysis will be based on doctrinal legal research. In the first phase, emphasis will be placed on the New York Convention. In the second phase, a test of the abuse of power as entertained in national regimes will be the focal point. Finally, the New York Convention and the national approaches will be addressed.

Piotr obtained his first master's degree in Law from the University of Wroclaw in 2010. In the same year, he continued his studies within the Commercial Law LL.M. programme at Erasmus University, and graduated in 2011. Before starting his PhD in the Department of Private International and Comparative Law in 2012, he was working in arbitration departments of major law firms both in Poland and in the Netherlands.

P. Wilinski (2018, april 4). Should the Miami Draft Be Given a Second Chance? Or the New York Convention 2.0. Sevilla, International Conference: 60 Years of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Key Issues and Future Challenges.